CHILD CUSTODY BATTLES IN JAPAN AND PIERLUIGI’S STORY – ENGLISH VERSION

Stories of custody battles are copious, especially in case of mixed nationality couples, when one parent returns to his or her country of origin, taking the child along and severing all ties with the other parent.

Japan is often considered the “black hole” of child abduction, and a high number of disputes is registered in couples of mixed nationality when the Japanese parent (often the mother) takes the children to Japan and makes it impossible for the other parent to see them.

Japan ratified the 1980 Hague Convention on the Civil Aspects of International Child Abduction only in January 2014.

Nonetheless, the issue of custody of children, both in mixed and Japanese couples, remains extremely complex. The Japanese judicial system considers as “private” all disputes about parental responsibility, custody and child support after a divorce. Shared custody is not considered in the Japanese judicial system. The Court decides which parent is entitled to the full custody of children, only allowing the other parent to pay occasional visits. Moreover, sentences often consider as valid the arguments of the parent who has unilaterally decided to take away children.

Legal battles undertaken by the so called “left behind” parents are, however, on the rise, as in Pierluigi’s case.

Pierluigi (fictional name used to protect his family during the ongoing trial) is an Italian citizen who lives and works in Tokyo, is married to a Japanese woman and is the father of two children that he hasn’t met since last year. Since then, he has been trying to make his voice heard and to see his fatherly rights recognized. A trial is currently under way at the Nagasaki Family Court.

1. How long have you been without seeing your children?

My wife and I moved to Japan, my wife’s native country, in 2015, after spending a few years in Italy and in Germany. Things between my wife and I were not going well, but I thought that the situation would have improved after moving to her country; on the contrary, as soon as we moved to Japan she decided to go to live in Nagasaki, her home town, with our two children of four and two years. The official reason she gave me was that in there, it would have been easier to have access to child care; in Tokyo, waiting lists in nurseries and kindergartens are long. For a few months, I was able to see my kids every time I could reach them in Nagasaki: I would never have imagined to receive, in September, an email telling me I was not allowed to see them anymore. When our second child, our daughter, was born, I took a one year long parental leave and spent my whole time with the kids. Now, I can’t imagine living without them. As of today, my wife still hasn’t initiated the divorce procedures.

2. Have Italian authorities (Italian Embassy, Consulate, other institutions…) been helping you? If yes, how?

Last September, after receiving my wife’s email, I immediately contacted the Italian Embassy in Tokyo. They suggested me to inform the police and gave me the names of certain lawyers with expertise in cases of international disputes. I contacted these lawyers, but they advised me to give up, as that is the way these matters work in Japan and there is nothing that can be done about it. Even if disheartened, however, I did not give up and continued gathering information about Japanese and international legislation.

When it comes to separation between two Japanese nationals, there are cases of fathers who succeed in gaining custody of the children. I have no intention of taking my kids away from Japan, and my case doesn’t fall under the Hague Convention on Child Abduction, having my kids been taken away from me in Japan and not abroad. Therefore, I preferred consulting lawyers with expertise in parental disputes in Japan.

The Embassy also offered me language support, of which I am in no need, because I’ve been speaking Japanese for 17 years, and psychological support. From this point of view, support from my friends and colleagues has also been helping me a lot.

Italian authorities in Japan are given the possibility to contact my wife to ask about the children (who are also Italian citizens) wellbeing. I still haven’t resorted to that option, as I want to first see how the trial currently underway at the Nagasaki Family Court proceeds.

My kids are currently living in Nagasaki, therefore the competent authority is now the Italian Consulate in Osaka: they have been very helpful in offering me useful contacts to try and solve this situation inside Japan and at international level.

I also contacted Italian authorities in Italy (Minister of Foreign Affairs, Ministry of Justice, Italian Parliament), among which also the Presidency of the Council of Ministers and of the Republic. I would like to address a special thanks to Mrs Emanuela D’Alessandro, Diplomatic Adviser of the President of the Republic, for the letter in which she expressed sympathy on behalf of President Mattarella. In Italy, family is sacred; therefore, even if I am on the other side of the world, feeling sympathy and warmth from Italy makes me (and, surely, also my children) proud of being Italian citizens.

3. Which Japanese authorities (your kids’ school? Social workers? Any other similar institution) tried to help you?

Recently, the Japanese Parliament talked about my case: MP Kenta Masunami discussed my situation with Prime Minister Shinzo Abe during a session of the Japanese National Diet.

Former Foreign Minister Minoru Kiuchi expressed his support and confirmed that the Japanese Parliament is expected to approve a law on child abduction soon (in the month of June). This shows how the theme of child abduction is well known in Japan. The Government is willing to intervene, also because suicides linked to family matters among young people are on the rise.

However, even though I got in touch with several Japanese institutions (social workers, institutions for family support, catholic Church, associations against racism, associations against the violation of human rights), none of these associations came to my help. They condemn my wife’s behaviour, but no one tries to put an end to such injustice. The only thing they tell you is to contact a lawyer as soon as possible.

Japan, though having ratified it, completely ignores UN Convention on the Rights of the Child.

I would like to resort to a metaphor: it is as if everyone had noticed there are injured people on a street, but they would only look at the scene without intervening because they are not qualified doctors or nurses. The majority of Japanese people prefer to endure injustices rather than raise their voices and report a wrongdoing. This is also one of the reasons why many office clerks commit suicide rather than reporting their boss for the amount of overtime work.

4. Is the issue of “child abduction” discussed on Japanese media? If yes, how?

To take kids away from the other parent in order to obtain their custody is a normal practice in Japan. As such, it is not considered particularly interesting. No one is surprised by this. In Italy, everyone is shocked, but here they just coldly comment “Ah, so you got the kind of wife who runs away”.

Media are relatively absent, even though the case of Yasuyuki Watanabe, a Ministry of Interior employee, raised attention from public and media regarding this too long ignored injustice.

In 2010, Watanabe lost all contact with his daughter, taken away from the mother, and has since started a legal battle with the purpose of seeing her again. At first, with a historical sentence, the Court recognised him the right to his daughter’s custody. However, the Tokyo High Court has recently overturned the verdict, because the daughter is now used to live without him.

At about the same time as Watanabe’s case, the article published on La Stampa on January 6th [2] started to be given visibility in Japan as well, showing to both the public and the ruling class how laws on child abduction are applied differently on national and international level, with reference to the Hague Convention. To avoid sanctions established from the Hague Convention, it is enough to abduct children after having moved to Japan, as in my case. If Japan continues its habit of not intervening in such cases, more and more people will act like my wife.

MP Kenta Masunami’s speech in the Japanese Diet on February 14th raised concern from many Japanese journalists, who are now showing interest in my situation. Until a few months ago, the Japanese media would simply refer to such cases as to “disagreement between spouses”. The main question I was asked used to be: “What have you done, for your wife to decide to take your children away?”.

Now, thanks to the articles published on international media, it is starting to be understood how those are not simple disagreements between my wife and I, but a complex issue regarding a whole society that is very cold in respect to families.   

 

We asked Giorgio Fabio Colombo, a lawyer specialised in Japanese law and professor at Nagoya University, for an in-depth analysis on the issue

1. In the international law, the Hague Convention regulates the civil aspects of international child abduction. Does the Japanese subscription of the Convention represent an important step forward in the field of international child abduction? Can the Convention be applied to Pierluigi’s case?

The Hague Convention is of utter importance, because it regulates the safeguard of children (younger than 16) in cases of international abduction; in Japan, it was ratified only recently (April 2014) and there isn’t a strong orientation yet.

In order to resort to the Hague Convention, it is necessary that an international abduction took place. That is when one of the parents takes the minor to a Country different from the one he or she was born in or from the one where they used to live, without the consent of the other parent; or when, after a period of residence in a foreign country, the minor is not taken back to his or her country of origin or of usual residency. In Pierluigi’s case, those requirements are missing, because the abduction took place in the country of usual residency. Moreover, the parents are not divorced; therefore, the Japanese judicial system considers such cases as private matters, of simple, domestic resolution. The peculiarity of Japanese family law, that favours one-parent families in cases of divorces instead of shared custody, makes the matter even more complicated. Japanese law does not consider the practice of joint custody if parents are divorced, nor it sees favourably other forms of compromise: even though there are limited rights of visits, one of the parents is, in most cases, completely excluded from his or her child’s life; the other parent is exclusively in charge of the child.

2. Japan is considered the “black hole of child abduction”: is it true that Japanese Courts always express themselves in favour of the parent with Japanese nationality (often the mother)? In case of divorce between two Japanese nationals, is the mother always safeguarded, to the father’s disadvantage? What is the jurisprudence’s stance on the matter? Is this a cultural issue?

In the majority of cases, the mother is the foster parent. This choice traces its origins in the Japanese culture traditionally favouring stability as a way to secure the best interest of children. On the contrary, joint custody or frequent visits from the other parent might cause trouble and menace the stability needed by the children.

In cases of consensual divorce, where the simple administrative procedure is enough (roughly 90% of cases statistically), parents decide between themselves how to proceed. If they cannot find an agreement, they enter a phase of conciliation in the Court; divorcees have the assistance of a Commission that helps them finding an agreement, also on child custody. Only in 1% of the cases there is need for a procedure of judicial divorce, in which the judge decides on the custody of children. Such factors make Pierluigi’s situation more complicated. First: Japanese law considers single parenthood as the ideal outcome in case of divorce; shared custody is the standard procedure in most developed jurisdictions, where co-parenting is considered a key point for minors, but not in Japan. In Japan, stability is considered more important. Japanese Courts, when deciding on matters of child custody, seek for the best interest of children according to law, and therefore favour stability. Therefore, co-parenting, joint custody and visits longer than one day are considered a menace to stability, and hence not advisable. Second: in Japan, being able to visit one’s own children is not recognised as a constitutional right. It is a right just as any other recognised by the civil code. There have been cases of non-foster parents acting against the rule of the Court on the basis of the constitutional right to happiness (recognized by the Japanese constitution), but they have had no success. Article 766 of the Japanese Civil Code grants the right to visit one’s own children, but the prevailing interpretation is that parents have the right to ask to see their children, not to actually see them. In 48% of cases, the parent who did not obtain custody has been granted visits less than once a month; only in 14% of cases, visits are longer than one day. In 82% of cases, custody of children is granted to the sole mother, and this makes the Japanese situation very different from that of many other Countries, where co-parenting is considered the best option for children, so that they can maintain a relationship with both parents. I am not a sociologist, and cannot, therefore, make any statement that is not in the technical sphere. However, the habit of solely granting custody to mothers does not take into account the economic conditions of single parents. Many mothers find themselves in difficult economic conditions when having to raise their children alone, because they do not receive anything from the ex-husband.

[1] The Convention came into effect on 1 April 2014, but is not retroactive.

[2] La Stampa, January 6th 2017,  http://www.lastampa.it/2017/01/06/italia/cronache/luomo-che-combatte-la-legge-nipponica-per-rivedere-i-suoi-figli-2xgHMN5GrE7ImR8M5RkswK/pagina.html

Featured Image: http://www.japantimes.co.jp/community/2011/08/30/voices/japans-silent-tsunami-severs-parental-ties-wrecks-childrens-lives/#.WMkqUXBsfL8

 

This interview is the English translation of the Italian “Figli contesti. Il caso del Giappone e la storia di Pierluigi.” Read the Italian version!

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